Kennedy's heirs and ex'rs v. Kennedy's heirs, 3 Ala. 434

COLLIER, C. J. In considering this cause, a preliminary question suggested itself, viz: Is the case brought here by appeal, such as this Court can entertain 1 It is correct as a general proposition, that an appeal will not lie from an interlocutory order; but it is not universally true, for if such an order will finally affect the merits of the case, or deprive the party complaining of it, of any benefit he may have at the final hearing, an appeal is allowable. Buloid v. Miller, 4 Paige’s Rep. 473; Rogers v. Paterson, ibid. 450; Lomax v. Picot, 2 Rand. Rep. 247; Beach v. Fulton Bank, 2 Wend.

Rep. 225; Ringgold’s case, 1 Bland’s Rep. 5: McKim v. Thompson, ibid. 270. The order confirming the separate report of the master, is in one sense interlocutory, in not putting an end to the suit; yet, if it is obnoxious to the objections made to it, it might prejudice the appellants, if upon taking the account, a balance should be found : in their favor. In this view, the jurisdiction of this Court is entirely defensible. Robertson v. Bingley, 1 McC. Ch. Rep. 333; Allen v. Belcher, 2 H. & M. Rep. 595; Gibson v. Randolph, 2 Munf. Rep. 310; Danels v. Taggart’s adm’r, 4 G. & Johns. Rep. 311.

It is objected to the proceedings of the Court of Chancery, 1. That the separate report of the master was premature and irregular. 2. That the draft of the conveyance reported is variant from the decree under which the reference was made, .and does not particularize the land to be conveyed.

According to the practice in the English Chancery, where the inquiries are numerous, and it is of importance that a part of the decree should be satisfied before the whole of the proceedings-are-sufficiently matured to enable the master to make a general report, he will report separately on any particular inquiry. • This practice is thus regulated by the general orders of 1828. “Previous to that time, the master was not,” says Smith, “at liberty, unless authorised by the decree to make a separate report.” 2 Smith’s Chan. 157.

It is insisted that, under the old practice in England, which is our .guide here, in the absence of any statute, or rule of our own, that á separate report-must be authorised by the general decree in the cause-, and not by a mere decretal order. This argument, in our opinion, is not sustained, either by reason or authority. If by a'decree, disposing of the entire merits of the controversy, a- reference is made to the master to ascertain and report upon- certain matters as the basis of the definitive action of the Court, it is competent for the Court to make further orders to advance -the inquiry of the master.

The principles settled, will hot by 'such a course be disturbed, but the justice of the causé will be advanced. The only change made in this respect by the1 orders of 1828, is to enable the master to make a separate report, without a special order of the Court. 1. Hoffman's Ch. Prac. 543. It was then a matter addressing itself to the discretion of the chancellor, to grant or refuse the motion for a' special reference and a separate report.

His opinion of its propriety was to be formed from all the circumstances shown to him, and is not revisable by an appellate tribunal; unless, perhaps, it ap.-pear-that it may be productive of injury. In this view, the.proceedings of the Court of Chancery were not premature, and are not irregular, unless the second objection taken is well founded. It was supposed by the appellant’s counsel, that the conveyance approved by the Chancellor does not conform to the decree in the cause, that the decree excepts from the operation of the deed, such part of the lands as were sold or conveyed by Wm.

E. or Joshua Kennedy, &c. while the conveyance excepted such as had been sold and conveyed, and might consequently operate more extensively than the decree intended. We are not prepared to say from the transcript before us, ■that this ground is well taken in point of fact; if it is, the conveyance is certainly objectionable. But be this as it may, it is obvious from the decree, that an.exception is made in favor-of the appellants for all the lands which may have been disposed of, by Wm.

E. or Joshua Kennedy, or Hallett and Walker, as the executors of the latter, by any operative contract; and even if the words sold and conveyed, are used conjunctively in the decree, the exception in the conveyance, if these words are thus employed there, so as to exert a controlling influence, is not sufficiently broad.' The conveyance explicitly reserves to the grantors all estate and claim which they or either of them may have in the lands described in it; also, the estate and claim of the other appellants; “except the estate, interest and claim, that the said Joshua Kennedy, in his lifetime, had and held by the Spanish grants to Thomas Price, Wm.

McVoy and Alexander Baudine, the deed, to him from Wm. E. Kennedy, of the 13th day of December, A. D. 1824, and the acts of the Government of the United States, recognizing and confirming the said claims, and granting further assurances of them.” This exception from the reservation in favor of the executors and heirs of Joshua Kennedy is entirely proper, and taken in connection with the reservation of lands sold by Wm. E. or Joshua Kennedy, or by the executors of the latter, shows the extent to which the conveyance, if executed, would operate.

Conceding that the conveyance is such as the appellees’ counsel contends, and still, it is objectionable. The appellants by the deed of 1824, to Joshua Kennedy, have a legal title fo the lands in question, and are entitled to a lien upon them for the payment of any balance, that may be found due on taking the account directed by the decree. If the conveyance approved by the Chancellor should be executed by Halleit and Walker, they would lose this security for the reimbursement of the estate of their testator.

It is no answer to say that the balance may and probably will be in favor of the appellees, for neither the Court of Chancery, or this Court can, in anticipation of. the master’s report, say how this matter may be. It is no objection to the conveyance, that it does not particularize the lands to which the appellees are entitled. Perhaps neither the stating part, or the prayer of the bill, authorize partition to be made, but be this as it may, the decree neither contemplates or authorises it.

If partition shall hereafter be desired, it will be entirely competent for the parties to take the proper steps for that purpose, which are very simple and clearly defined. From what has been said, it results, that this Court has jurisdiction of this cause, by appeal, and the Chancellor may, in his discretion, authorise a separate report of a deed, and require it to be executed by Joshua Kennedy’s executors, but that the conveyance reported and approved, is defective, because it does not continue the appellant’s lien for what may be found due on final account.

The decretal order appealed from, is consequently reversed, and the cause remanded; that the Court of Chancery may direct such deed to be executed, as we have indicated would be proper.